I-751 Waivers
Presented by Law Office of Irene Mugambi P.C. and Larry
Davis P.C.
Texas Chapter Spring Conference April 26, 2014
Conditional Residency
Defined
•
Marriage results in conditional residency (CR) unless it is more than
2 years old at the time of granting immigrant status. INA § 216, 8
USC §¶ 1186a.
•
The period is measured from the time residency status is accorded.
 Joint petitions are filed during the 90 day period preceding the
expiration of CR. If window is missed couple can still file for “good
cause and extenuating circumstances”
 CR children are usually included on parents’ petition however under
certain circumstances must file separately.
Types of I-751 Waivers
1.
The Beneficiary entered into the marriage in good faith, but his/her
spouse subsequently died, - waiver provisions of 216(c)(4) don’t apply
but certain requirements must be met
2.
The termination of the beneficiary’s status and removal would result in
extreme hardship.
3.
The Beneficiary entered into a good the marriage in good faith, but the
marriage was later terminated due to annulment or divorce
4.
The Beneficiary entered into the marriage in good faith and the couple
remained married, but the beneficiary has been battered or subjected to
extreme cruelty by the U.S. citizen or permanent resident spouse.
I-751 Marriage Dissolved
due to Divorce or
Annulment
 Cannot file joint waiver
 Alien spouse may filed a waiver of the joint application
under 8 CFR §¶216.5, 1216.5
 Can file waiver any time after CR6 status and before
removal proceedings
Married but legally
separated?
 May I-751 jointly
 If divorce is pending, USCIS will issue an RFE
permitting 87 days to submit evidence. Once decree is
provided then case covents to waiver.
 If no decree is available, USCIS will continue to process
as joint petition. (Kurzban’s Immigration Law
Sourcebook, 14th Edition, citing Memo, Neufeld Acting
Director, USCIS, I-751 Filed prior to Termination of
Marriage (April 3, 2009).
What happens if USCIS
denies the I-751
 Applicant is placed in removal proceedings INA §
237(a)(1),USC )§127(a)(1)(D); 8CFR§216.4 (d)(2),
1216.4(d)(2).¶¶¶
 No appeal of I-751 except in removal proceedings;
Matter of Mendes, 20 I & N Dec. 833 (BIA 1994).
 Client cannot file the I-751 with the IJ for the first time.
Legal Opinion, Cook, General Counsel (January 9,
1990), reprinted in 67 No. 6 Interpreter Releases 159,
170 (Feb. 5, 1990).
proceedings prior to
divorce being final what
happens?
 Request a continuance before IJ to allow time for the
divorce to be concluded
 Move to reopen proceedings after divorce is finalized and
the ability to file the I-751 waiver.
BIA Cases on I-751 in
removal proceedings
Matter of Stowers, 22 I&N Dec. 605 (BIA 1999).
Matter of Lemhammad, 20 I&N Dec.316 (BIA 1991).
Matter of Mendes, 20 I&N Dec (BIA 1994).
Hypothetical
 Mary a devout Ethiopian Orthodox met John a naturalized USC
who was visiting his parents in Ethiopia. The couple fell in love and
John asked for Mary’s hand in marriage. John returned to the US
and filed a K-1 visa for Mary. Upon Mary’s entry into the US, the
couple got married. He filed for her CR6 status and was approved.
One month thereafter, John decided that Mary had become hyper
religious and that she was no longer allowed to attend church. He
became violent with her on several occasions. John became obsessed
with Mary’s movements, and decided to control all her finances in
an effort to reign her in. Mary decided she had enough of his
physical abuse and left him. Her CR6 is due to expire soon. John
has told her that if she leaves he will make sure she never gets her
green card. Mary does not believe in divorce because it goes against
her faith. Can Mary proceed with filing for her conditions to be
lifted despite still being married to him? What evidence would she
need?
•Battered Spouse Waiver
 Must prove bona fides of marriage
 Must prove subjected to battery or extreme cruelty
 Available to individuals who have been ordered removed
and deported and or let their conditional status terminate
and failed to depart after status terminated. 8 CFR
§¶216.5(e)(3)(ii).
Hypothetical
 Maria married Jose a USC in California in 1988. He
petitioned her in 1989, and her CR6 status was granted within
a few months. No I-751 was filed and CR6 status expired in
1991. In 1992 after having had their third child, Maria left
Jose. Maria left due to severe domestic violence. She moved
around from shelter to shelter and eventually decided to
return to her home country El Salvador in 1996. In 1997
USCIS placed her in removal proceedings and entered an in
absentia order against her? Maria’s children now want to
return back to the US. Is Maria eligible to seek the battered
spouse waiver assuming she had all the necessary
documentation to prove the violence?
Extreme Hardship Waiver
 Threshold is “extreme”
 No fixed meaning and not inflexible
 Use traditional extreme hardship factors
 If possible include nexus between factor and violence
 Factually determined
Hypothetical
Nooria is from Afghanistan and entered the US in July, 2010 as a K1. She had met her fiancée for
the first and only time at the couple’s engagement party in her small village 200 miles south of
Kabul. The couple married soon after she arrived and moved in with his parents in New York City.
Also living with them was his 5-year-old son from his previous marriage and his two younger sisters.
Things went well at first until the husband started spending days at the computer playing video
games. He never wanted to leave the house or have any relations with Nooria and when she tried
to get him to be more social or to be intimate he would become verbally abusive and sometimes
physically push her away. He never otherwise struck Nooria but would often discipline his son
physically. The son had to be taken to the hospital once because of these disciplinary actions.
Feeling alone she reached out by email to her male cousin who she had grown up with in
Afghanistan to discuss her situation and ask for advice. They corresponded for several weeks by
email until her sister-in-law discovered one of the emails on the computer and brought it to the
family’s attention. This caused much strife in the family with threats of divorce and shame for her
and her family in Afghanistan. (So much so that the male cousin in Afghanistan had to flea their
country out of fear for his life over threats from Nooria’s husband’s extended family and seek asylum
in Pakistan.) Nooria was so distraught over the whole situation that she overdosed on Tylenol one
day and had to be rushed to the hospital. Her uncle from Texas eventually traveled to New York
and “rescued” her while she was still in the hospital. With assistance of the police, Nooria and her
uncle went to her husband’s home and gathered her personal belongings and left for Texas. They
have come to you for help in filing for the removal of conditions, which will expire in one month.
What advice do you have? Would it be different if the CR has already expired?